Do Diploid Dave and Zelinda Zygote Get Equal Protection?

Robert Gladd

The current language of the Constitution extends full protection only to "persons born or naturalized" here, stating additionally that "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As Supreme Court Justice Scalia has said: "I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

Does
the second drawing below rightfully ("morally") portray a "person,"
within the proper Constitutional construction of such a "human being"
— given the depiction therein of a spermatozoon having penetrated the
cell wall of the ovum and thereby establishing a complete complement of
chromosomes? (We assume for the sake of this rumination that it’s an
illustration of a new human zygote.)

Why posit the question?
Well, consider recent remarks proffered by former presidential
candidate and religous conservative former Arkansas Governor Mike
Huckabee in support of a Colorado "Human Life Amendment" initiative, as recently reported:

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…"This
proposed constitutional amendment will define a person as a human being
from the moment life begins at conception," Huckabee said in a
statement, according to a Denver Post report.

"With this
amendment, Colorado has an opportunity to send a clear message that
every human life has value. Passing this amendment will mean the people
of Colorado will protect the sanctity of life from conception until
natural death occurs," he said.

Huckabee also has expressed support for a similar amendment to the U.S. Constitution.

Pro-life
activists in Colorado now are in the process of collecting the 76,000
petition signatures they will need to put their proposal on the 2008
election ballot. The state Supreme Court previously approved the format
of the proposal for the ballot.

The plan would grant personhood
to the unborn from the moment of fertilization, meaning state and local
laws protecting any individual life would be applied to the unborn. It
targets a loophole the U.S. Supreme Court created when it issued the
original Roe v. Wade abortion opinion.

The opinion said: "(If
the) suggestion of personhood [of the preborn] is established, the
[abortion rights] case, of course, collapses, for the fetus’ right to
life is then guaranteed specifically by the [14th] Amendment."…

Yes,
"Equal Protection," guaranteed by the 14th Amendment in the U.S.
Constitution. Governor Huckabee, we must allow, at least has the
courage of his stated convictions, i.e., whereas the bulk of abortion
and contraception opponents tend to dance euphemistically and
deflectively around the core issue by asserting more imprecisely that "life begins at conception," the Governor wishes to specifically — via constitutional amendment — "define a person as a human being from the moment life begins at conception." Recall that the current language of the Constitution extends full protection only to "persons born or naturalized" here, stating additionally that "nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."

"Born," not "unborn."
(hence the end-game need for the Amendment, ultimately —
notwithstanding the ongoing legislative and inferior courts’ patchwork
incremental nibbling at the margins in the wake of Roe).

One case still considered a seminal post- Roe reproductive rights decision is that of the Tennessee Davis vs. Davis frozen embryos dispute:

"…Over
the past several years, some important cases have shed light on the
legal parameters and core ethical issues facing couples who disagree
over the disposition of frozen embryos. The seminal case, Davis v.
Davis,[3] involved a Tennessee couple who attempted for several years
to have children through IVF. The last attempt produced 7 extra
embryos, which were placed in cryopreservation for possible use at a
later time. When the couple signed up for IVF, they did not execute a
written agreement specifying what disposition should be made of any
unused embryos that might result from the cryopreservation process.
Thus, when the couple filed for divorce and the wife wanted to retain
the embryos, the husband filed suit seeking to enjoin the clinic from
releasing them. She sought "custody" of the embryos; he wanted them
destroyed.

The Supreme Court of Tennessee upheld the lower
court’s ruling that the pre-embryos in this case should not be
considered "persons" or "property" in the contemplation of the law, nor
where they afforded protection as "persons" under the federal law as
laid forth in Roe v. Wade.
However, the Supreme Court refused to let stand the lower court’s
ruling that the couple held joint custody of the pre-embryos, noting
that the only outcome allowable was to keep the pre-embryos in
cryopreservation pending the couple’s possible future meeting of the
minds. Instead, the higher Court shifted its analysis to the issue of
whether the couple intended to have children in the future — not
whether they agreed on the disposition of the pre-embryos — and ruled
that the answer turned on the parties’ exercise of their constitutional
right to privacy…
(www.medscape.com/viewarticle/508555)

As
my wife and I were residing in Knoxville at the time, we had more than
just a passing familiarity with this highly visible, acrimonious case.
In fact, we knew the activist "pro-life" attorney who intervened to sue
separately for "foster parent custody" of these frozen embryos (he was denied; the frozen embryos were ultimately destroyed).

Interestingly, Supreme Court Justice Antonin Scalia recently weighed in on the issue. As reported this past March:

Warrensburg, MO (LifeNews.com, 3/5/08)
— Supreme Court Associate Justice Antonin Scalia spoke to students at
the University of Central Missouri on Tuesday night and told them that
abortion isn’t found in the Constitution. He also indicated he would be
lucky to get 60 votes in today’s political climate where abortion rules
how senators vote on judicial confirmations.

"The reality is the
Constitution doesn’t address the subject at all," Scalia said of
abortion. "It is one of the many subjects not in the Constitution which
is therefore left to democracy."

"If you want the right to an
abortion, persuade your fellow citizens it’s a good idea and pass a
law. If you feel the other way, repeal the law," he said, according to
a Columbia Tribune report…

Justice Scalia echoed the sentiments during CBS "60 Minutes" interview on April 27th:

WASHINGTON
[AP] — The Constitution doesn’t prohibit abortion any more than it
allows it, Supreme Court Justice Antonin Scalia says in a television
news interview to be broadcast Sunday.

Scalia told CBS News’ "60
Minutes" that he may be conservative, but he is not biased on issues
that come before the court. "I mean, I confess to being a social
conservative, but it does not affect my views on cases," Scalia said in
excerpts released Thursday.

"On the abortion thing, for example,
if indeed I were … trying to impose my own views, I would not only be
opposed to Roe versus Wade, I would be in favor of the opposite view,
which the anti-abortion people would like to see adopted, which is to
interpret the Constitution to mean that a state must prohibit
abortion," Scalia told correspondent Lesley Stahl.

"And you’re
against that?" Stahl asked.Scalia replied, "Of course." He said
"there’s nothing" (in the Constitution to support that view.)…

From the subsequent "60 Minutes" Scalia interview transcript:

"My
job is to interpret the Constitution accurately. And indeed, there are
anti-abortion people who think that the constitution requires a state
to prohibit abortion. They say that the Equal Protection Clause
requires that you treat a helpless human being that’s still in the womb
the way you treat other human beings. I think that’s wrong. I think when
the Constitution says that persons are entitled to equal protection of
the laws, I think it clearly means walking-around persons
[emphasis mine -BG]. You don’t count pregnant women twice."

Yes. That is what the Constitution in fact plainly says, even to us Great Unwashed non-lawyers.

Amendment XIV

Section
1. All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
state wherein they reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

So,
in Mr. Scalia’s view, the Constitution neither protects nor prohibits
clinical abortion, consequently "democratic" legislation is the remedy
for proponents of either position. But, legislation has to ultimately
pass Constitutional muster (even by the default circumstance of
appellate challenges declined). Clearly, he would personally favor
legislation outlawing the practice, however, if he is to be taken at
his word, legislation legalizing abortion would also have to be
adjudged permissible a priori
were his view to prevail within The Court (absent some new and
compelling rationale with clear Constitutional implications within an
appellate case seeking Supreme Court review).

This takes us back
to the 14th Amendment. State level or federal legislation prohibiting
clinical abortion (of either the surgical or pharmaceutical variety)
inescapably denies the "equal protection of the laws" accorded by the
14th Amendment to an entire class of "persons born" solely on the basis
of their female gender. Simple plebian yet coherent deductive logic
says that such laws would necessarily and clearly contravene the 14th
Amendment. Many critics of the principal Roe
rationale — a woman’s inviolable (1st trimester only) "right of
privacy" — fault the finding for not ruling primarily on a 14th
Amendment "equal protection" basis. "Privacy," as we have seen
increasingly post- 9/11, can be the shakiest of terrain (across a
number of fronts) upon which to ground constitutional arguments. "Equal
protection," on the other hand, seems intuitively more fundamental and
politically defensible in the aggregate.

There is plainly no way for both an unwillingly pregnant woman and the not-currently-a-"person" zygote/blastocyst/embryo/fetus growing within her gestational organ to be accorded "equal" legal rights (established Roe trimester/"increasing-state-interest" parsing notwithstanding). One or the other must
prevail in the event a woman opts to terminate her pregnancy. Any law
denying a woman this autonomy of personhood looks to be nothing other
than unconstitutional on its face.

That leaves the tactic of the ultimate "democratic" legislation, the one publicly favored by Mr. Huckabee et al
(and, we might safely assume, Justice Scalia), a "Human Life Amendment"
conferring Constitutional "personhood" on the unborn from the
(clinically unknowable) "moment of conception."

What, then,
would be a direct, necessary logical jurisprudential consequence of
such a national "Human Life Amendment" update to our Constitution?

Well,
first, unless a ratified Human Life Amendment contained explicit
language eliminating 14th Amendment "equal protection" minimally with
respect to pregnant women, we would have the problematic, paradoxical spectacle of two Amendments at war with one another.

But wait, there’s more…
Quoting John
C Petrozza, MD, Instructor, Department of Obstetrics and Gynecology,
Harvard Medical School; Consulting Staff and Chief, Division of
Reproductive Medicine and IVF, Vincent Obstetrics and Gynecology,
Massachusetts General Hospital
:

…Early
pregnancy loss is unfortunately the most common complication of human
gestation, occurring in at least 75% of all women trying to conceive.
Most of these losses are unrecognized and occur before or with the next
expected menses. Of those that are recognized, 15-20% are spontaneous
abortions (SABs) or ectopic pregnancies diagnosed after the pregnancy
is clinically recognized. Approximately 5% of couples trying to
conceive have 2 consecutive miscarriages, and approximately 1% of
couples have 3 or more consecutive losses…

…The incidence of spontaneous miscarriage is 10-15%, whereas the rate of recurrent miscarriage is 3-5%.

Most
studies demonstrate a spontaneous miscarriage rate of 10-15%. However,
the true rate of early pregnancy loss is close to 50% because of the
high number of chemical pregnancies that are not recognized in the 2-4
weeks after conception. Most of these pregnancy failures are due to
gamete failure (eg, sperm or oocyte dysfunction). In a classic study by
Wilcox et al in 1988, 221
women were followed up during 707 total menstrual cycles. A total of
198 pregnancies were achieved. Of these, 43 (22%) were lost before the
onset of menses, and another 20 (10%) were clinically recognized
losses…

OK, for the sake of simple illustration, let’s take the E-Z round number "50%", i.e., from the foregoing: the
true rate of early pregnancy loss is close to 50% because of the high
number of chemical pregnancies that are not recognized in the 2-4 weeks
after conception. Most of these pregnancy failures are due to gamete
failure (eg, sperm or oocyte dysfunction)."

Do
a little basic arithmetic using another recent national round number of
approximately 4,000,000 live births in the U.S. each year. Exclusive of
intentional clinical abortion, 4,000,000/50% = 8,000,000 Human Life
Amendment "persons" conceived each year, four million of them "dead" in utero.

High-minded, vigilant "equal protection," consequently, would mandate that all
of these "weakest among us" be accorded [1] the monitoring by (and
warranted intervention by) expanded "Child Protective Services"
agencies, and [2] in the event of in utero
zygotic/embryonic/fetal demise, full investigations to determine
whether any evidence of criminal or otherwise actionably negligent
"foul play" might have occurred (e.g., beyond willful acts such as
"foul play" might have occurred (e.g., beyond willful acts such as
abortifacient ingestion, or simply dysfunctional maternal "lifestyle"
behaviors that would now necessarily be regarded as tantamount to
"child abuse").

Anyone who thinks there would not arise platoons
of Morally Wonderful, Altruistic "pro-life" lawyers ready and eager to
litigate such mindless "constitutional" inanities has got another
thought coming. Abstruse clean-hands moralism apparently knows no
bounds.

None of the immediately foregoing is intended to take broad-brush pejorative potshots at everyone who opposes abortion. Count me among those who have misgivings with therapeutic abortion being reflexively viewed as "just another birth control method." But I also have misgivings about my right to even opine on the topic, in light of my male gender. What’s the joke? "If men could get pregnant, abortions would be everywhere legal and free."

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